## Facts

- Minor plaintiff J.B. suffered a permanent injury to his right eye when a BB from a Red Ryder BB gun struck him while he was at minor defendant M.M.’s home.
- Before the injury, J.B. and M.M. had been taking turns shooting at each other with the BB gun as a consensual game (one child firing while the other ran).
- J.B. and M.M. testified that only the two of them were playing the shooting game and that they stopped when other neighborhood children arrived, including minor defendant C.L.
- The other children came into the backyard for an unrelated reason (including looking for a neighbor’s cat).
- During the events after the other children arrived, J.B. accidentally shot one of the girls.
- Afterward, J.B., M.M., and C.L. were on an elevated deck near M.M.’s pool when J.B. was shot in the eye.
- J.B. did not know whether M.M. or C.L. fired the BB that injured him.
- The evidence conflicted on the shooter’s identity: C.L. stated that M.M. fired the shot, while other children indicated C.L. fired.
- J.B., through his parents, sued the minors and their parents/guardians, asserting claims that included negligence and claims against the adults based on supervision and access to the BB gun.
- The trial court granted summary judgment to the defendants, concluding there was no genuine dispute that J.B. was participating in a recreational activity at the time of injury, which limited liability to reckless or intentional conduct.
- J.B. appealed.

## Issues

1. Whether summary judgment was proper on the ground that, as a matter of law, J.B. was a voluntary participant in a recreational activity when he was shot, triggering Ohio’s primary-assumption-of-risk standard (reckless or intentional conduct rather than ordinary negligence).
2. Whether genuine issues of material fact existed regarding who fired the BB gun and whether the consensual BB-gun “game” had ended before J.B. was shot.
3. Whether summary judgment was proper on the claims against the adult defendants for supervision and access to the BB gun, given evidence about what the adults knew and did during the incident.

## Decision

- The Ninth District Court of Appeals reversed in part and affirmed in part the trial court’s summary-judgment ruling.
- As to the minor defendants (M.M. and C.L.), the court reversed summary judgment, holding that the record contained genuine disputes about (a) whether J.B. remained a participant in the BB-gun activity at the time he was shot and (b) which minor fired the shot.
- The court held that, with those disputes, the recreational-activity/primary-assumption-of-risk analysis could not be applied as a matter of law to end the case on summary judgment.
- As to the adult defendants, the court affirmed summary judgment on some claims and reversed on others, permitting certain supervision/access-related theories to proceed where the record could support duty, breach, and causation, while leaving other portions of the adult-liability case resolved in the adults’ favor.

## Legal Principles

- Ohio’s primary assumption of risk for recreational or sporting activities limits a participant’s recovery to injuries caused by reckless or intentional conduct, not ordinary negligence.
- The doctrine applies only when the injured person is, at the time of injury, voluntarily participating in or engaging in the recreational activity; whether participation continued can be a fact question.
- On summary judgment, courts must view the evidence and reasonable inferences in favor of the nonmoving party; if reasonable factfinders could reach different conclusions on material facts, summary judgment is improper.
- Conflicting evidence about the identity of the shooter and the continuation or cessation of the activity are material disputes that generally must be resolved by a factfinder.
- Parents or guardians may face liability under negligence-based theories (such as supervision or allowing access to a dangerous instrumentality) when the evidence could support findings of duty, breach, and proximate cause; whether the proof meets those elements can be claim-specific.

## Conclusion

Because the record contained conflicting evidence about whether the BB-gun shooting game had ended and whether M.M. or C.L. fired the shot that blinded J.B. in one eye, the appellate court held that the trial court could not treat J.B.’s injury as occurring during a recreational activity as a matter of law and therefore reversed summary judgment for the minors; it also reversed and affirmed in part as to the adult defendants, allowing certain supervision/access-related claims to continue while leaving other rulings intact.


Bastian v. McGannon, 2008 WL 833997 (2008)